John Proud, Individually and as Next Friend of Heather Proud, a Minor v. United States

John Proud, individually and as next friend of Heather Proud, a minor, appeals the district court’s dismissal of the complaint for failure to state a claim upon which relief can be granted. Plaintiff filed suit in federal court seeking damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1976 & Supp. V 1981), for injuries that Heather Proud sustained in a diving accident at Haleakala National Park.

The United States moved for dismissal and argued that, under the FTCA, the law of the State of Hawaii governs the federal government’s liability — and therefore, that the state’s Recreational Use Statute, Hawaii Rev.Stat. §§ 520-1 to 520-8 (1976), completely barred the claim.

The district court agreed and dismissed the action pursuant to Fed.R.Civ.P. 12(b)(6).

STANDARD OF REVIEW

In determining the liability of the United States, the district court interpreted Hawaiian law. We recently granted rehearing en banc to decide whether a “clearly wrong” or a de novo standard applies when the Ninth Circuit reviews a district court’s determination of the forum state’s law. This issue need not detain us, however, because we must affirm under either…